1
Mr. Felix specifically alleges that on or about June 14, 2003
through June 19, 2003, Nurse Dute negligently administered the drug Artane
instead of “doctor prescribed tablets ‘Propylthiouracil’.”
2
With regard to Warden Ira Phillip, who did not personally commit
any constitutional violations, liability under § 1983 cannot be based upon
respondeat superior or other forms of vicarious liability.  See generally
Stankowski v. Farley, 251 Fed. Appx. 743 (3d Cir. 2007) (holding that Warden
of prison who did not personally commit any constitutional violations was not
liable under § 1983 for constitutional violations committed by prison
employees he may have supervised, and superior liability was not available
under 42 U.S.C. § 1983).  There must be some allegation and proof of personal
involvement-in the form of actual participation or acquiescence in the alleged
unlawful conduct-by each defendant. E.g., Rizzo v. Goode, 423 U.S. 362 (1976);
Commonwealth of Pennsylvania v. Porter, 659 F.2d 306 (3d Cir. 1981).  There is
no allegation that Warden Ira Phillip was personally involved in the allegedly
unlawful conduct giving rise to this complaint.  Therefore, even if this
action were to survive the Government’s jurisdictional challenge, dismissal of
Warden Phillips would be appropriate.
IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
CHARLES M. FELIX,
) D.C. CV. No. 2003/159
Plaintiff,
)
)
v.
)
)
WARDEN IRA PHILLIP; ANN DUTE, Nurse; and)
GOVERNMENT OF THE VIRGIN ISLANDS,
)
Defendants.
)
________________________________________)
O R D E R
THIS MATTER initially came before the Court on a complaint
filed by Charles Felix alleging that Defendant Dute was grossly
negligent when she administered the wrong medicine1 causing him
anxiety, fatigue, back pain, stomach ache, and forgetfulness.2
Defendants moved pursuant to Fed. R. Civ. P. 12(h)(3) to dismiss
Felix’s complaint for failure to allege a federal question arising
under the United States Constitution, United States laws, or United
Case: 1:03-cv-00159-RLF-GWC   Document #: 16   Filed: 04/04/08   Page 1 of 2
Felix v. Warden, et al.
D.C. CV. 2003-159
Order
Page 2
States treaties; failure to allege diversity; and failure to
provide any basis for federal jurisdiction.  (Defs. Mem. of Law in
Supp. of Defs. Mot. to Dismiss at 1-2.)
Felix’s complaint further fails to affirmatively set forth any
grounds for federal jurisdiction.  Moreover, even if the Court were
to construe Felix’s pro se complaint as alleging a violation of his
civil rights under 42 U.S.C. § 1983, the result would be the same
because Felix failed to exhaust administrative remedies prior to
filing his complaint.  See 42 U.S.C. § 1997e; see generally Potter
v. Deputy Attorneys Under Lynn Abreham, No. 03-04735, 2008 WL
375106, at *8 (E.D.Pa. Feb. 11, 2008).   The premises considered
and the Court being sufficiently advised, it is hereby
ORDERED 
that 
this 
matter 
is 
DISMISSED 
for 
lack 
of
jurisdiction; and finally
ORDERED that the Clerk of the Court shall CLOSE this file.
DONE AND SO ORDERED this 4 day of April 2008.
E N T E R:
/s/
_____________________________
RAYMOND L. FINCH
DISTRICT JUDGE
Copies to:
George W. Cannon, Jr., Magistrate Judge
Charles M. Felix, Golden Grove Adult Correctional Facility,
Rural Route 1, Kingshill, VI 00850 - (Please Mark:  “LEGAL MAIL:
OPEN IN PRESENCE OF INMATE ONLY”)
Richard Schrader, Jr., AAG
Law Clerk-TLB
T. Serrano, Deputy Clerk
Case: 1:03-cv-00159-RLF-GWC   Document #: 16   Filed: 04/04/08   Page 2 of 2